27 April 2017

Comprehension

To ensure that consumers understand financial products’ “costs, benefits, and risks,” the Consumer Financial Protection Bureau has been redesigning mandated disclosures, primarily through iterative lab testing. But no matter how well these disclosures perform in experiments, firms will run circles around the disclosures when studies end and marketing begins. To meet the challenge of the dynamic twenty-first-century consumer financial marketplace, the bureau should require firms to demonstrate that a good proportion of their customers understand key pertinent facts about the financial products they buy. Comprehension rules would induce firms to inform consumers and simplify products, tasks that firms are better equipped than the bureau to perform.

We know that members of the public find court forms complex. Less is known, however, about what in particular makes these documents difficult for non-legally trained people to complete.

The study described in this article seeks to fill this information gap by deploying a “functional literacy” framework to evaluate court form complexity. In contrast to more traditional conceptions of literacy, “functional literacy” shifts the focus away from the ability to read and towards the ability of individuals to meet task demands. Under this framework, an individual is assigned a literacy level by virtue of the complexity of the tasks that he or she is able to complete. As a result, the framework focuses as much on tasks (and associated documents) as it does on the capacity of the individual.

Four different Ontario forms needed to initiate three different types of legal proceedings were examined: (1) a Plaintiff’s Claim (Form 7A) that an individual would need to start a claim in Small Claims Court; (2) a Form T2-Application about Tenant Rights that an individual would need to seek relief against a landlord before the Landlord and Tenant Board; and (3) an Application (General) (Form 8) and Financial Statement (Property and Support Claims) (Form 13.1) that an individual would need to seek a contested divorce that would include a contested spousal support claim and division of property. With respect to each court form, it was assumed for the purposes of the study that the individual using the court form would also be referring to the relevant government-published guide to completing the specific court form. Both the court forms and the guides examined were those in use as of July 2015.

The results of the study are described in significant detail in the article. Some of the identified sources of challenge include requirements to: generate information that requires expert legal knowledge; infer the meaning of technical legal terms; and move between multiple information sources (including, for example, searching on a website to find a correct court address). Another set of identified challenges was reflected in “distractors” contained in the court forms that risked confusing the reader, such as broad requests for information or the use of unclear terms. Although the associated court guides provided some guidance on the above types of issues, we found that such guidance was often incomplete and also potentially difficult to access given the overall complexity of the guides themselves.

Although proposing comprehensive solutions was beyond the scope of this study, the article concludes with a preliminary discussion of possible solutions, including form redesign, the use of dynamic electronic forms and the provision of unbundled legal services.

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Statements in this blog are my own, rather than that of the University of Canberra.

The text and images are protected under Australian and international copyright and trade mark law. The blog does not represent legal advice. It is for informational purposes only; publication does not create an attorney-client relationship and nothing on this blog constitutes a solicitation for business.

The author pleads guilty to charges of irreverence, irony, indignation and honestly-held opinion.